Calcutta High Court (Appellete Side)
Usha Holding Enclave Pvt. Ltd vs Indira Majumder And Others on 21 August, 2018
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12 21.08.2018
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
C.O. No. 2202 of 2018
Usha Holding Enclave Pvt. Ltd.
Vs.
Indira Majumder and others
Mr. Aniruddha Chatterjee,
Mr. Surya Prasad Chattopadhyay
...for the petitioner
Mr. Jayanta Kumar Mitra,
Mr. Samit Talukdar,
Ms. Hashnuhana Chakraborty,
Ms. Shebatee Dutta,
Mr. Ranjit Kumar Basu,
...for the opposite party nos. 1 and 2.
Mr. Utpal Majumdar,
Mr. Abhishek Banerjee,
...for the opposite party nos. 8 and 9.
Mr. Hiranmay Bhattacharya,
Mr. Suman Dey,
...for the opposite party nos. 14 to 16.
The present revisional application is the story of a class
struggle between an application under Order XXI Rules 97 to
101 of the Code of Civil Procedure and a regular civil suit.
2. The decree holder/petitioner and proforma opposite
party nos. 3 to 9 instituted a suit against the predecessor‐in‐
interest of proforma opposite party nos. 10 to 12, bearing
Ejectment Suit No. 58 of 2007, which was decreed in favour of
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the petitioner, upon which the petitioner levied execution,
thereby giving rise to Title Execution Case No. 47 of 2008.
3. The present opposite party nos. 1 and 2 filed in the
said execution case an application under Order XXI Rules 97 to
101 of the Code of Civil Procedure, which was registered as
Miscellaneous Case No. 773 of 2010, thereby claiming
independent ownership rights in respect of the suit property.
4. The judgement resistors/opposite party nos. 1 and 2
filed, in connection with the said miscellaneous case, an
application for injunction restraining the decree holders and
their men and agents from causing any obstruction and
interference in the matter of peaceful occupation and
enjoyment of the judgement resistors and their family
members in the suit property and/or from dispossessing and
ousting the judgement resistors from the schedule mentioned
property illegally and forcefully and/or from alienating the
said property to any third party and/or from changing the
nature and character of the said property. The said application
was captioned to be under Order XXXIX Rules 1 and 2, read
with Section 151, of the Code of Civil Procedure.
5. The decree holders, including the present petitioner,
contested such injunction application by filing a written
objection, thereby denying the material allegations made in the
application. The executing court, vide Order dated May 8,
2017, rejected on contest the said injunction application, inter
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alia holding that the judgement resistors did not have a prime
facie case to go for trial.
6. The judgement resistors preferred against the said
order of refusal of injunction a miscellaneous appeal, bearing
Miscellaneous Appeal No. 153 of 2017. Ultimately the
Additional District Judge, by his Judgement and Order dated
May 19, 2018 allowed the said appeal on contest, thereby
setting aside the order of the trial court and restraining both
parties from changing the nature of the suit property in respect
of possession and otherwise, till disposal of Miscellaneous
Case No. 773 of 2010.
7. The decree holder/petitioner has challenged the said
order passed in the miscellaneous appeal and takes a
preliminary point that such appeal was not maintainable since,
although the opposite party nos. 1 and 2 described the
injunction application to be one under Order XXXIX Rules 1
and 2, read with Section 151, of the Code of Civil Procedure,
the said application actually invoked only the inherent power
of the executing court under Section 151 of the Code, since the
proceeding under Order XXI Rules 97 to 101 of the Code was
not a 'suit'.
8. It is argued on behalf of the petitioner that appeal is a
creature of statute and Order XLIII Rule 1 (r) of the Code of
Civil Procedure provides for an appeal only against an order
under Rules 1, 2, 2‐A, 4 or 10 of Order XXXIX of the Code. On
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the other hand, it is argued, Order XXXIX Rules 1 and 2 govern
only injunction orders passed in a 'suit'.
9. Since a proceeding under Order XXI Rules 97 to 101
of the Code of Civil Procedure is not a 'suit' in the real sense,
but only has the trappings of a suit, orders of injunction are
passed in such proceedings by invoking the inherent
jurisdiction of the executing court under Section 151 of the
Code of Civil Procedure, and not under Order XXXIX Rules 1
and 2 of the Code. As such, it is argued, no appellability is
conferred upon such orders.
10. In this context, learned counsel for the petitioner
relies on Section 141 of the Code of Civil Procedure, which
reads as follows:
"141. Miscellaneous proceedings. - The procedure
provided in this Code in regard to suit shall be followed, as far as it
can be made applicable, in all proceedings in any Court of civil
jurisdiction.
Explanation. - In this section, the expression "proceedings"
includes proceedings under Order IX, but does not include any
proceeding under article 226 of the Constitution."
11. It is argued that although the procedure provided in
the Code of Civil Procedure with regard to suits shall be
followed, as far as it can be made applicable, in all proceedings
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in any Court of civil jurisdiction, mere applicability of such
procedure does not convert such proceeding to a suit.
12. It was further submitted that Section 141 of the
Code extends only the procedure under the Code, which are
applicable to suits, to miscellaneous proceedings or other civil
proceedings not governed by the Code; it is the procedure
alone that is covered by Section 141 of the Code, and the
substantive provisions of the Code are not extended thereby to
miscellaneous proceedings or other civil proceedings not
governed by the terms of the Code. A right of appeal is a
substantive right, which cannot be construed to be conferred
by implication, by operation of Section 141 of the Code.
13. In support of such proposition, learned Counsel for
the petitioner cites a Full Bench decision of this Court, reported
at 2013 (2) CHN (Cal) 142= AIR 2013 Cal 231 [Sabyasachi
Chatterjee -v‐ Prasad Chatterjee & Gopal Das Bagri -v‐ Brij Mohan
Benani]. It was held in the said judgment that no appeal is
maintainable against an interlocutory order passed by an
appellate court in an appeal from a decree, since no specific
provision is there in the Code of Civil Procedure for such an
appeal. Paragraph nos. 6 to 10 and 28 of such judgment, which
are relevant in the context, are quoted below:
"6. The first reference may be answered rather simply by discovering
that none of the provisions in the body of the Code, or anything in the
Rules appended thereto, permits an Appeal from an Interlocutory
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Order passed in an Appeal from a decree. The answer is no more
difficult to make because of the absence in Section 96 of the Code
(which provides for Appeals from original decrees) of a provision
similar to Section 104(2) of the Code, particularly since the
prohibition under Section 105(1) thereof applies to all orders not
specifically covered by Section 104(2) of the Code; and an
Interlocutory Order in an Appeal from a decree, by virtue of Section
105(1) of the Code, cannot be carried in Appeal unless it is expressly
provided for. In the context of the present discussion, the unavoidable
implication of Section 105(1) of the Code is that only such orders
passed in an Appeal from a decree would be amenable to Appeal as
have been expressly provided for; or, if there is no express provision
for an Appeal from a certain order, there is no right of Appeal.
7. The more comprehensive answer to the question lies in the general
provisions relating to Appeals as recognised in Sections 107 & 108 of
the Code. In the absence of Sections 107 & 108 of the Code, an
Appellate Court would apparently have had no express authority to
entertain a substantive Application for injunction or the like except
to the extent permitted by the rules or in exercise of its inherent
jurisdiction. But Section 107(2) of the Code gives every Appellate
Court the same powers and the obligation to perform the same duties
"as are conferred and imposed by the Code on Courts of Original
jurisdiction in respect of Suits instituted therein." However, Section
107(2) is of limited import and does not expressly cover Appeals from
Appellate decrees or Appeals from orders made under the Code or
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Appeals under any special or local law of Civil nature. It is only
Section 108 of the Code that extends the authority and the obligation
of the Appellate Court in, inter alia, Section 107(2) thereof to Appeals
from Appellate decrees; to Appeals from orders made under the Code;
and, to Appeals under any special or local law in which a different
procedure is not provided. The authority of an Appellate Court to
exercise the same powers as are conferred by the Code, and the
obligation of the Appellate Court to perform as nearly as may be the
same duties as are imposed by the Code, on Courts of Original
jurisdiction may not be as wide in scope in an Appeal from an
Interlocutory or Interim Order as in an Appeal from a decree. Such
authority and obligation, which would cover the entire ambit of the
relevant Suit in an Appeal from a decree, would necessarily be
restricted to the scope of the Interlocutory Petition on which the
Interim Order under Appeal was passed in an Appeal from an order
made under the Code.
8. In an Appeal from a decree, as in C.O. No. 1862 of 2011, Section
107(2) of the Code confers the same powers and imposes the same
duties on the Appellate Court as conferred and imposed by the Code
on the Court of Original jurisdiction in respect of the Suit. It is the
substantive provision of Section 107(2) of the Code that permits an
Appellate Court to entertain an Interlocutory Petition in course of
the Appeal. Such Interlocutory Petition may be for an order in the
nature of attachment before judgment or an order of injunction or an
order for the appointment of a receiver or like orders, whether under
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any precise provision, therefor, or under the inherent jurisdiction as
saved by Section 151 of the Code as available to the Court of Original
jurisdiction. It is, therefore, plain to see that an Appellate Court does
not exercise the professed authority under Order 38 or Order 39 or
Order 40 or like provisions of the Code to pass any Interlocutory
Order but, by virtue of Section 107(2) of the Code, read in the
appropriate case with Section 108 thereof, the Appellate Court
exercises the authority or discharges the obligation akin to the direct
authority conferred or obligation imposed by the Code on the Court of
Original jurisdiction. In each case, however, the scope of the
authority conferred or the obligation imposed bears a direct nexus
with the scope of the authority available or the duties required to be
discharged by the Court of the first instance. The authority and
obligation of the Appellate Court are also directly relatable to the
nature of the proceedings ‐ including the scope thereof ‐ which
resulted in the decree or the order under Appeal.
9. This marked distinction between the exercise of authority by a
Court of Original jurisdiction under Order 38 or Order 39 or Order
40 or like provisions of the Code and the authority exercised by an
Appellate Court by virtue of the permissive provision in Section
107(2) of the Code is the defining factor in determining whether an
Interlocutory Appellate Order made in exercise of the power under
Section 107(2) of the Code is amenable to an Appeal. Since the bar
under Section 104(2) Of the Code would not apply to any order
passed in course of an Appeal from a decree, Section 105(1) of the
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Code would come into play. The embargo under Section 105(1) of the
Code is not as uncompromisingly absolute as in Section 104(2)
thereof; it only prohibits Appeals from all Appellate orders for which
there is no express provision of Appeal. The Appeals recognised
under Order 43, Rule 1 of the Code from orders passed by a Court of
Original jurisdiction cannot be understood to extend by implication
to Interlocutory Appellate Orders. Those Appellate Orders that are
appellable are expressly provided for in Order 43, Rule 1, itself.
10. As an indispensable corollary, once it is noticed that Section
107(2) of the Code, when read with Section 108 thereof, covers all
Appeals as recognised in the Code, the authority of the Appellate
Court to exercise the powers of the Court of Original jurisdiction
cannot be traced to the Miscellaneous provisions as to other Civil
Proceedings recognised in Section 141 of the Code. For a start,
Appeals are regarded as Appeals in the Code and cannot be treated as
Miscellaneous proceedings. Undoubtedly, Appellate proceedings
cannot be viewed as proceedings of the first instance. Second, Section
141 of the Code extends the procedure provided in regard to Suits, to
the extent such procedure can be made applicable, to all proceedings
in any Court of Civil jurisdiction. The expression "all proceedings"
in Section 141 of the Code has necessarily to be seen as all
proceedings of Civil nature to which the Code does not apply in terms
and to which the procedure prescribed for Suits by the Code would
not have applied but for Section 141 thereof. Since the procedure in
the conduct of Appeals and the substantive rights conferred on an
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Appellate Court are expressly contained in the Code itself, the specific
provisions ‐ whether substantive or procedural ‐ in the Code
governing Appeals which arise under the Code will guide the conduct
and the course of Appeals under the Code and not the residuary
provision in Section 141 thereof that makes the procedure under the
Code applicable to other proceedings of Civil nature.
*** *** ***
28. There can be no doubt that the provisions in the Code did not
apply in terms to the proceedings that threw up the orders impugned
before this Court in Sushil Kumar De and Raj Kumar Rowla. It is
also beyond question that the procedure under the Code applicable to
suits stood extended to the proceedings in either case of Sushil Kumar
De and Raj Kumar Rowla under section 141 of the Code. However,
Section 141 of the Code extends only the procedure under the Code
applicable to suits to miscellaneous proceedings or other civil
proceedings not governed in terms by the Code: it is the procedure
and procedure alone that is covered by section 141 of the Code and
the substantive provisions of the Code are not extended thereby to
miscellaneous proceedings or other civil proceedings not governed in
terms by the Code. That a right of appeal is a substantive right is
beyond question. Such right cannot be seen to have been conferred by
implication in section 141 of the Code extending the procedure under
the Code applicable to suits to miscellaneous proceedings and other
civil proceedings not governed in terms by the Code."
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14. It is further argued on behalf of the petitioner that
since an application under Order XXI Rules 97 to 101 of the
Code of Civil Procedure is registered as a miscellaneous case
under the Civil Rules and Orders framed by this Court, the
ratio laid down in 2013 (2) CHN (Cal), 142 squarely applies to
such cases. Accordingly, it is submitted, an order of injunction
passed therein is not appellable.
15. Hence, learned counsel for the petitioner submits
that the order passed in appeal, setting aside the order of the
executing court rejecting injunction, was without jurisdiction,
since the order of the executing court itself was not appellable
at all. As such, it is argued, the order of the appellate court
ought to be set aside.
16. In controverting such arguments, learned senior
advocate appearing on behalf of the judgement
resistors/opposite party nos. 1 and 2 argues that a proceeding
under Order XXI Rules 97 to 101 of the Code of Civil
Procedure was different from an ordinary miscellaneous
proceeding, which partakes its classification as miscellaneous
proceeding under the Civil Rules and Orders. An application
under Order XXI Rules 97 to 101 of the Code of Civil
Procedure is a deemed suit and is conferred such status by
Rules 97 to 101 and 103 of the Code of the Code of Civil
Procedure itself, and not the Civil Rules and Orders.
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17. It is submitted on behalf of opposite party nos. 1
and 2 that, prior to the coming into force of the Code of Civil
Procedure (Amendment) Act, 1976 with effect from February 1,
1977, a third party‐resistor had to file a separate suit to agitate
their independent rights in respect of the property, which was
the subject‐matter of an eviction decree. However, after
introduction of such amendment, Rules 97 to 104 of Order XXI
of the Code of Civil Procedure underwent a sea change and
any resistance or obstruction by any person in obtaining the
property would result in an adjudication under Rule 101 of
Order XXI of the Code. Hence, it is argued, a proceeding under
the said provisions substituted a regular civil suit as far as the
executing court was concerned. In such a scenario, such a
proceeding ought to be deemed to be a suit for all practical
purposes, including the contemplation of a 'suit' in Order
XXXIX Rules 1 and 2 of the Code of Civil Procedure, resulting
in turn in appellability from an injunction order passed in such
a proceeding.
18. In this context, it will be relevant to set out the
provisions of Order XXI, Rules 97 to 104 of the Code of Civil
Procedure:
"97. Resistance or obstruction to possession of immovable
property. ‐ (1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold in
execution of a decree is resisted or obstructed by any person obtaining
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possession of the property, he may make an application to the Court
complaining of such resistance or obstruction.
(2) Where any application is made under sub‐rule (1), the
Court shall proceed to adjudicate upon the application in accordance
with the provisions herein contained.
98. Orders after adjudication. ‐ (1) Upon the determination of the
questions referred to in rule 101, the Court shall, in accordance with
such determination and subject to the provisions of sub‐rule (2),‐‐
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or dismissing
the application; or
(b) pass such other order as, in the circumstances of the case,
it may deem fit,
(2) Where, upon such determination, the Court is satisfied
that the resistance or obstruction was occasioned without any just
cause by the judgment‐debtor or by some other person at his
instigation or on his behalf, or by any transferee, where such transfer
was made during the pendency of the suit or execution proceeding, it
shall direct that the applicant be put into possession of the property,
and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order
the judgment‐debtor, or any person acting at his instigation or on his
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behalf, to be detained in the civil prison for a term which may extend
to thirty days.
99. Dispossession by decree‐holder or purchaser. ‐ (1) Where
any person other than the judgment‐debtor is dispossessed of
immovable property by the holder of a decree for the possession of
such property or, where such property has been sold in execution of a
decree, by the purchaser thereof, he may make an application to the
Court complaining of such dispossession.
(2) Where any such application is made, the Court shall
proceed to adjudicate upon the application in accordance with the
provisions herein contained.
100. Order to be passed upon application complaining of
dispossession. - Upon the determination of the questions referred to
in rule 101, the Court shall, in accordance with such determination, ‐
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or dismissing
the application ; or
(b) pass such other order as, in the circumstances of the case,
it may deem fit.
101. Question to be determined. - All questions (including
questions relating to right, title or interest in the property) arising
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between the parties to a proceeding on an application under rule 97
or rule 99 or their representatives, and relevant to the adjudication of
the application, shall be determined by the Court dealing with the
application, and not by a separate suit and for this purpose, the Court
shall, notwithstanding anything to the contrary contained in any
other law for the time being in force, be deemed to have jurisdiction to
decide such questions.
102. Rules not applicable to transferee pendente lite . - Nothing
in rules 98 and 100 shall apply to resistance or obstruction in
execution of a decree for the possession of immovable property by a
person to whom the judgment‐debtor has transferred the property
after the institution of the suit in which the decree was passed or to
the dispossession of any such person.
Explanation. - In this rule, ʺtransferʺ includes a transfer by
operation of law.
103. Orders to be treated as decrees. - Where any application has
been adjudicated upon under rule 98 or rule 100, the order made
thereon shall have the same force and be subject to the same
conditions as to an appeal or otherwise as if it were a decree.
104. Order under rule 101 or rule 103 to be subject to the result
of pending suit. - Every order made under rule 101 or rule 103
shall be subject to the result of any suit that may be pending on the
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date of commencement of the proceeding in which such order is made,
if in such suit the party against whom the order under rule 101 or
rule 103 is made has sought to establish a right which he claims to the
present possession of the property."
19. Learned senior advocate appearing for the opposite
party nos. 1 and 2 cites a judgement reported at AIR 1953 SC
244 [State of Bombay -v‐ Pandurang Vinayak Chaphalkar and Ors.]
which referred to East End Dwellings Co.Ltd. -v‐ Finsbury
Borough Council [1952 AC 109]. In the said English judgement,
Lord Asquith held as follows:
"if you are bidden to treat an imaginary state of affairs as
real, you must surely, unless prohibited from doing so, also imagine
as real the consequences and incidents which, if the putative, state of
affairs had in fact existed, must inevitably have flowed from or
accompanied it... The statute says that you must imagine a certain
state of affairs; it does not say that having done so, you must cause or
permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs. "
20. Learned senior advocate next cites a judgement
reported at (1996)3 SCC 154 [Babulal -v‐ Raj Kumar and Ors.], in
paragraph nos. 5 and 6 of which the following legal
proposition was laid down:
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"5. In the execution application filed under Order 21 Rule 32
of the CPC the appellant filed an objection on the ground that he
could not be dispossessed. It is not in dispute that the appellant was
not a party to the decree for specific performance. His objection was
overruled by the executing court holding that since he had not been
dispossessed, application under Order 21 Rule 97 is not
maintainable. That view was affirmed by the High Court in the
impugned order dated 9‐5‐1995 in CRP No. 656 of 1994 by the High
Court of Rajasthan at Jaipur Bench. Thus, this appeal by special
leave.
6. The controversy is no longer res integra. This Court
in Bhanwar Lal v. Satyanarain [(1995) 1 SCC 6] considered the
controversy and had held that even an application filed under Order
21 Rule 35(3) or one filed under Section 47 would be treated as an
application under Order 21 Rule 97 and an adjudication is required
to be conducted under Rule 98. Dispossession of the applicant from
the property in execution is not a condition for declining to entertain
the application. The reasons are obvious. The specific provisions
contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular
adjudication, finding recorded thereon would be a decree and bind the
parties. In para 7 thereof it was held thus:
"In the above view we have taken, the High Court has
committed grievous error of jurisdiction and also patent illegality in
treating the application filed by the appellant as barred by limitation
and the third one on res judicata. Once the application, dated 25‐5‐
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1979 was made, the Court should have treated it to be one filed under
Order 21, Rule 97(1) CPC. The question of res judicata for filing the
second and third applications does not arise. Under these
circumstances the appellate court, though for different reasons was
justified in directing an enquiry to be conducted for removal of the
obstruction or resistance caused by Satyanarain under Order 21
Rules 35(3) and 97(2) and Order 21, Rules 101 and 102 of CPC."
It would, therefore, be clear that an adjudication is required
to be conducted under Order 21, Rule 98 before removal of the
obstruction caused by the objector or the appellant and a finding is
required to be recorded in that behalf. The order is treated as a decree
under Order 21, Rule 103 and it shall be subject to an appeal. Prior
to 1976, the order was subject to suit under 1976 Amendment to
CPC that may be pending on the date the commencement of the
amended provisions of CPC was secured. Thereafter, under the
amended Code, right of suit under Order 21, Rule 63 of old Code has
been taken away. The determination of the question of the right, title
or interest of the objector in the immovable property under execution
needs to be adjudicated under Order 21, Rule 98 which is an order
and is a decree under Order 21, Rule 103 for the purpose of appeal
subject to the same conditions as to an appeal or otherwise as if it
were a decree. Thus, the procedure prescribed is a complete code in
itself. Therefore, the executing court is required to determine the
question, when the appellants had objected to the execution of the
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decree as against the appellants who were not parties to the decree for
specific performance."
21. In the third judgment cited by the opposite party
nos. 1 and 2, reported at (1998)4 SCC 543 [Shreenath and Another
-v‐ Rajesh and Others.], the questions raised, as reflected in
paragraph nos. 5 and 7 of the said judgment, were, whether a
third party in possession of a property claiming independent
right as a tenant not party to a decree under execution could
resist such decree by seeking adjudication of his objections
under Order XXI Rule 97 of the Civil Procedure Code, and
whether a Full Bench decision on such question, on the basis of
which objection of the appellant was rejected without
considering the points raised on merit or other objections, was
correctly decided.
Paragraph nos. 10 to 18 of Shreenath & Anr. (supra) are
relevant in the present context:
"10. Under sub‐clause (1) Order 21 Rule 35, the executing court
delivers actual physical possession of the disputed property to the
decree‐holder and, if necessary, by removing any person bound by the
decree who refuses to vacate the said property. The significant words
are by removing any person bound by the decree. Order 21 Rule 36
conceives of immovable property when in occupancy of a tenant or
other person not bound by the decree, the court delivers possession by
fixing a copy of the warrant in some conspicuous place of the said
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property and proclaiming to the occupant by beat of drum or other
customary mode at some convenient place, the substance of the decree
in regard to the property. In other words, the decree‐holder gets the
symbolic possession. Order 21 Rule 97 conceives of resistance or
obstruction to the possession of immovable property when made in
execution of a decree by "any person". This may be either by the
person bound by the decree, claiming title through the judgment‐
debtor or claiming independent right of his own including a tenant
not party to the suit or even a stranger. A decree‐holder, in such a
case, may make an application to the executing court complaining
such resistance for delivery of possession of the property. Sub‐clause
(2) after 1976 substitution empowers the executing courts when such
claim is made to proceed to adjudicate upon the applicantʹs claim in
accordance with the provisions contained hereinafter. This refers to
Order 21 Rule 101 (as amended by 1976 Act) under which all
questions relating to right, title or interest in the property arising
between the parties under Order 21 Rule 97 or Rule 99 shall be
determined by the court and not by a separate suit. By the
amendment, one has not to go for a fresh suit but all matter
pertaining to that property even if obstruction by a stranger is
adjudicated and finally given even in the executing proceedings. We
find the expression "any person" under sub‐clause (1) is used
deliberately for widening the scope of power so that the executing
court could adjudicate the claim made in any such application under
Order 21 Rule 97. Thus by the use of the words "any person" it
21
includes all persons resisting the delivery of possession, claiming
right in the property, even those not bound by the decree, including
tenants or other persons claiming right on their own, including a
stranger.
11. So, under Order 21 Rule 101 all disputes between the decree‐
holder and any such person is to be adjudicated by the executing
court. A party is not thrown out to relegate itself to the long‐drawn‐
out arduous procedure of a fresh suit. This is to salvage the possible
hardship both to the decree‐holder and the other person claiming title
on their own right to get it adjudicated in the very execution
proceedings. We find that Order 21 Rule 35 deals with cases of
delivery of possession of an immovable property to the decree‐holder
by delivery of actual physical possession and by removing any person
in possession who is bound by a decree, while under Order 21 Rule
36 only symbolic possession is given where the tenant is in actual
possession. Order 21 Rule 97, as aforesaid, conceives of cases where
delivery of possession to the decree‐holder or purchaser is resisted by
any person. "Any person", as aforesaid, is wide enough to include
even a person not bound by a decree or claiming right in the property
on his own including that of a tenant including a stranger.
12. Prior to the 1976 Amending Act, provisions under Order 21
Rules 97 to 101 and 103 were different which are quoted hereunder:
"97. (1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold in
execution of a decree is resisted or obstructed by any person in
22
obtaining possession of the property, he may make an application to
the court complaining of such resistance or obstruction.
(2) The court shall fix a day for investigating the matter and
shall summon the party against whom the application is made to
appear and answer the same.
98. Where the court is satisfied that the resistance or
obstruction was occasioned without any just cause by the judgment‐
debtor or by some other person at his instigation, it shall direct that
the applicant be put into possession of the property, and where the
applicant is still resisted or obstructed in obtaining possession, the
court may also, at the instance of the applicant, order the judgment‐
debtor, or any person acting at his instigation to be detained in the
civil prison for a term which may extend to thirty days.
99. Where the court is satisfied that the resistance or
obstruction was occasioned by any person (other than the judgment‐
debtor) claiming in good faith to be in possession of the property on
his own account or on account of some person other than the
judgment‐debtor, the court shall make an order dismissing the
application.
100. (1) Where any person other than the judgment‐debtor is
dispossessed of immovable property by the holder of a decree for the
possession of such property or, where such property has been sold in
execution of a decree, by the purchaser thereof, he may make an
application to the court complaining of such dispossession.
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(2) The court shall fix a day investigating the matter and
shall summon the party against whom the application is made to
appear and answer the same.
101. Where the court is satisfied that the applicant was in
possession of the property on his own account or on account of some
person other than the judgment‐debtor, it shall direct that the
applicant be put into possession of the property.
***
103. Any party not being a judgment‐debtor against whom an order is made under Rule 98 or Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit (if any), the order shall be conclusive."
13. So far sub‐clause (1) of Rule 97 the provision is the same but after the 1976 Amendment all disputes relating to the property made under Rules 97 and 99 are to be adjudicated under Rule 101, while under unamended provision under sub‐clause (2) of Rule 97, the executing court issues summons to any such person obstructing possession over the decretal property. After investigation under Rule 98 the court puts back a decree‐holder in possession where the court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the court has to 24 dismiss the decree‐holderʹs application. Thus even prior to 1976, right of any person claiming right on his own or as a tenant, not party to the suit, such personʹs right has to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property on the own, if resists delivery of possession to the decree‐holder, the dispute and his claim has to be decided after the 1976 Amendment under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with Rule 99. However, under the old law, in case order is passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103, as it then was, he was to file a suit to establish his right. But now after the amendment one need not file suit even in such cases as all disputes are to be settled by the executing court itself finally under Rule 101.
14. We find that both either under the old law or the present law, the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the executing court itself.
15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99, the new law covers cases where persons other than the judgment‐debtor is dispossessed of immovable property by the decree‐ holder, of course, such cases are also covered to be decided by the 25 executing court. But this will not defeat the right of such a person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21 Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such a person can object and get adjudication when he is sought to be dispossessed by the decree‐ holder. For all the aforesaid reasons, we do not find the Full Bench in Usha Jain [AIR 1980 MP 146 : 1980 MPLJ 623] correctly decided the law.
16. In Noorduddin v. Dr K.L. Anand [(1995) 1 SCC 242] it is held:
"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree‐holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were 26 allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution."
17. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [(1997) 3 SCC 694] the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decree‐holder can or cannot request the executing court to adjudicate his claim without being insisted upon that first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:
"9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree‐holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree‐holder the remedy available to the decree‐holder against such 27 an obstructionist is only under Order 21 Rule 97 sub‐rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21 Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21 Rule 97...."
18. In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid Full Bench of the M.P. High Court in the case of Usha Jain v. Manmohan Bajaj [AIR 1980 MP 146 : 1980 MPLJ 623] cannot be held to be good law. As we have recorded above, both the executing court and the High Court have rejected the application of the applicant under Order 21 Rule 97 only on the basis of the said Full Bench decision, hence the said order cannot be sustained. Accordingly, both the orders dated 20‐2‐1985 passed by the High Court in Civil Revision No. 406 of 1983 and the order dated 20‐4‐1983 passed by the executing court in Execution Case No. 1‐A of 1970‐81 is herewith quashed."
22. By placing reliance on the above reported judgments, learned senior advocate appearing for the opposite party nos. 1 and 2 argued that a proceeding under Order XXI Rules 97 - 101 of the Code of Civil Procedure is a complete code in itself, and as such partakes the character of a suit with all its trappings.
23. Placing particular reliance on the comparative language of Order XXI Rule 103 and Section 2 (2) of the Code 28 of Civil Procedure, learned senior advocate argued that the effect of a regular decree and an order under the provisions of Order XXI Rules 97 - 101 is the same and, as such, such a proceeding as contemplated under the latter provisions has to be deemed as a suit, complete with all its nuances.
Section 2 (2) defines a decree as follows:
"2(2) ʺdecreeʺ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include‐
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
24. As such, it is submitted that an injunction order passed in such a proceeding ought to have the same status as that passed in a regular civil suit, hence governed by Order 29 XXXIX Rules 1 and 2 of the Code, which would make such an order appellable under XLIII Rule 1 (r) of the Code.
25. In such view of the matter, it is argued, the appellate court below was well within its jurisdiction in entertaining the miscellaneous appeal and passing a final order on the same, which is the subject‐matter of challenge in the present application under Article 227 of the Constitution of India.
26. On consent of parties, the point of maintainability of the miscellaneous appeal against the order of injunction, passed on an application filed in a proceeding under Order XXI Rules 97 to 101 of the Code of Civil Procedure, is taken up first, prior to hearing the parties on merits of the matter.
27. Upon hearing both sides and considering the materials on record, it is evident that there is a fundamental difference between a miscellaneous proceeding as contemplated in Section 141 of the Code of Civil Procedure and a proceeding under Order XXI Rules 97 to 101 of the Code. While in case of the former, the procedural aspects of a suit become applicable mutatis mutandis by virtue of Section 141 of the Code, in case of the latter, the procedure of a suit are made applicable not by virtue of Section 141 but by virtue of the provisions of Order XXI Rules 101 and 103 of the Code.
28. Rule 101 of Order XXI substitutes an application under Rule 97 or Rule 99 in place of a separate suit and 30 provides for all questions (including questions relating to right, title or interest in the property) which are decided in a suit, to be adjudicated upon in such applications.
29. Rule 103, on the other hand, confers appellability on an order passed under Rules 98 and 100 equivalent to that of a decree passed in a regular suit. It stipulates that such orders shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.
30. So, for all practical purposes, Rules 101 and 103 elevate the status of such a proceeding to that akin to a suit and of such an order to that resembling a regular decree.
31. As such, the resemblance of such a proceeding to a suit is far more proximate that of any other proceeding of an original nature, which remain essentially miscellaneous proceedings culminating in orders, only borrowing the procedure of a suit as far as applicable.
32. However, it is to be noted that, all said and done, an order passed under Rule 98 or Rule 100 has not been included in the definition of decree under Section 2 (2) of the Code of Civil Procedure, as has been certain other orders, like the rejection of a plaint and the determination of any question within Section 144 of the Code.
33. Moreover, even if the provisions from Rules 97 to 103 of Order XXI of the Code partake the character of a self‐ sufficient code in itself, the proceedings have retained their 31 description of 'applications' and their adjudications 'orders', only "having the force of a decree", but not decrees in themselves.
34. Theoretically, even a judgment debtor can agitate a new right, title or interest in an application under Rule 97 of Order XXI, although the scope of such question will be restricted to the binding effect of the decree on him/her. Hence, in such a case, if a proceeding under Rule 97 is taken to be a suit and an order passed thereon under Rule 98, read with Rules 101 and 103, a decree, then the judgment debtor will have a second lease of life. In such event, an absurdity will take place inasmuch as the judgment debtor will have a right to have a second adjudication akin to a suit by having a second decree in the execution proceeding arising from the first decree suffered by him/her. Such position is patently contrary to the known concepts of a decree as well as violative of Section 11 of the Code of Civil Procedure. It could not, under any stretch of imagination, be the intention of the legislature to permit a new suit in the execution proceeding relating to the decree passed in the first suit. That would militate against all known concepts of the powers of an executing court.
35. An arrangement of convenience to obviate multiplicity, by conferring power on an executing court to decide all questions between the judgment resistor and decree holder upon creating a fiction of a pseudo suit, is one thing, 32 and labelling a proceeding within the execution case to be an independent suit in reality, is totally another.
36. Merely because such proceedings have the trappings of a suit does not make those suits in reality. Conferment of appellability akin to a decree, on the final order passed under Rules 98 and 100 where there has been an adjudication under Rule 101, does not ipso facto render the proceeding to be a suit.
37. An appeal is a creature of statute and unless Section 104 and/or Order XLIII specifically confer appellability on an interlocutory order passed in a proceeding, mere appellability of the final order, akin to that of a decree, does not automatically confer appellability also on the interlocutory orders passed in such proceedings.
38. Although the judgment of Sabyasachi Chatterjee vs. Prasad Chatterje (supra) was rendered in connection with appellability of interlocutory orders passed in appeals from decrees, the ratio laid down in the same is squarely applicable to proceedings under Order XXI Rules 97 to 101 of the Code also.
39. In this context, it would be useful to look into the provisions of Section 105 of the Code of Civil Procedure, which are as follows:
"105. Other orders. ‐ (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the 33 exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub‐section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
40. It is seen that Sub‐Section (1) of Section 105 of the Code specifically bars any appeal from an order made by a Court in the exercise of its original or appellate jurisdiction, save as otherwise expressly provided.
41. In such context, since neither Order XXXXIII nor Section 96 of the Code of Civil Procedure provides for an appeal from interlocutory orders passed in such proceedings, no appeal can be said to be maintainable against such interlocutory orders. There is parity in the situations contemplated in the said full bench judgment of this Court and the instant case. As held in the said judgment, no interlocutory order passed in an appeal against a final decree is appellable, despite the fact that the final decision passed in the appeal was itself appealable as a decree, in a second appeal under Section 100 of the Code of Civil Procedure. Similarly, despite appellability having been conferred on the final decision 34 passed in a proceeding under Rules 97 to 101 or Order XXI, by virtue of Rule 103 of Order XXI, such status of the final order could not be imported to an interlocutory order passed in the proceeding, due to lack of any specific provision of appeal against such interlocutory orders.
42. Although the argument advanced by the petitioner, that attribution of the classification "judicial miscellaneous case" on proceedings of such nature robs appellability therefrom, is not acceptable, simply because such classification is a product of the Civil Rules and Orders framed by this Court, which cannot override the effect of the Code of Civil Procedure. However, such argument becomes unnecessary in view of the discussions hereinabove.
43. Hence, it is clearly indicated from the settled law holding the field, that interlocutory orders of refusal or grant of injunction in proceedings under Order XXI Rules 97 to 101 of the Code, being not passed in a suit and consequentially being not under Order XXXIX Rules 1 and 2 of the Code, are not appealable.
44. As such, unfortunate though it may be from the egalitarian viewpoint, a proceeding under Order XXI Rules 97 to 101, although eminent and outstanding in its own glory in the niche it has carved out for itself within the broader perspective of an execution proceeding, has to lose out in the 35 hierarchy of status to a regular suit, despite being on a better footing than other miscellaneous cases.
45. Accordingly, it is held that no appeal is maintainable from an interlocutory order passed in a proceeding under Order XXI Rules 97 to 101 of the Code of Civil Procedure. In such view of the matter, Miscellaneous Appeal No. 153 of 2017, an order passed in which has been challenged in the present revision, was itself not maintainable in law, as such denuding the appellate court of jurisdiction to pass the impugned order.
46. In such view of the matter, C.O. No. 2202 of 2018 is allowed on contest on the preliminary point that the Additional District Judge, Third Court at Alipore, District:
South 24 Parganas acted without jurisdiction in entertaining Miscellaneous Appeal No. 153 of 2017 and passing the impugned order dated May 19, 2018 therein. Accordingly, the impugned order dated May 19, 2018 passed by the Additional District Judge, Third Court at Alipore in Miscellaneous Appeal No. 153 of 2017 is set aside, thereby reviving the order dated May 8, 2017 passed by the Civil Judge (Junior Division), Second Court at Alipore in Miscellaneous Case No. 773 of 2010.
47. However, it is made clear that the present opposite party nos. 1 and 2 would be at liberty to challenge such order dated May 8, 2017 passed in Miscellaneous Case No. 773 of 2010 in a properly constituted proceeding and, if any such 36 challenge is taken out, the Court taking up such challenge would be free to adjudicate the same uninfluenced by any observations made by this Court or the appellate court, in accordance with law.
48. There will be no order as to costs.
49. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )